' This appeal is directed against the order, dated 24th February, 1983, passed by the 1st Sind Labour Court at Karachi, dismissing the appellant's application filed under section 25-A, I. R.
0., 1969.
2. The facts leading up to the appeal briefly stated are that the appellant was a permanent workman employed with the respondent establishment. He was an active Trade Unionist and it is alleged that the respondents having been annoyed with him on account of his trade union activities served him with a charge-sheet for misconduct allegedly to have committed under Standing Order 15(3)(a)(c)(h) of the Standing Orders Ordinance, 1968. He made a reply to the charge-sheet. An Enquiry Officer Shaukat Ali, Assistant Manager Administration of the respondents was appointed to hold an enquiry into the misconduct. He participated in the enquiry but ultimately before the enquiry was completed he walked out of the enquiry proceedings. Ultimately, on the basis of the enquiry report the charge against him having been established and after he was served with a show-cause notice he was dismissed from service vide dismissal order, dated 22nd November, 1980. He served a grievance notice, dated 23rd December, 1980 on the respondents and his grievance having not been redressed he filed an application under section 25-A, I. R.
0., 1969 before the 1st Sind Labour Court at Karachi. The learned Labour Court after recording evidence adduced by the parties dismissed his application as stated above. Aggrieved by the order, the appellant has come in this appeal.
3. I have perused the evidence recorded by the learned Labour Court. The appellant examined himself and his co-worker, namely, Abdul Manan whereas the respondents examined their Manager Administration Abdul Razzaq Awan, their Assistant Manager Administration Shaukat Ali the Enquiry Officer, Muhammad Hussain Time-Keeper working with the respondents and Mohib K.
Habib Assistant Director, Labour Welfare in support of their respective contentions. On behalf of the appellant, it has been maiply contended that proper and fair enquiry was not held and that neither the dismissal order arising out of such an enquiry just and proper nor it was issued by the competent authority under the law. It has been further contended on his behalf that in any case he was provided protection under section 8-A, I. R.
0., 1969 and the order of his dismissal from service was illegal even on that score. On behalf of the respondents, it has been contended that the appellant having participated in the enquiry and having cross-examined the first two witnesses walked out of the enquiry proceedings for the reasons best known to him and the dismissal order as a result of the enquiry was just and proper and was passed by the competent authority under the law as Abdul Razzaq Awan who passed and issued it was a notified Factory Manager and was thus competent to pass and issue the same. It has been further contended on behalf of the respondents that the appellant was provided no protection under section 8-A, I. R.
0., 1969, as neither the application for registration of trade union, of which he was elected as an office-bearer, a Propaganda Secretary, was pending with the Registrar of Trade Unions on the date of his dismissal order was passed nor the union had notified the names of office-bearers before the order of dismissal was issued. On hearing the learned counsel for the parties. Mr. M. M. Kazim for the appellant and Mr. Itrat Puri for the respondents, in the light of the evidence that is available on the record and the contentions raised on behalf of the parties as stated above, the issues that would arise for determination would be firstly, as to whether the order of dismissal of the appellant, dated 22nd November, 1980 was passed as a result of a fair and impartial enquiry and was just and proper in the circumstances of the case ; secondly, as to whether the order of dismissal was passed by the competent authority under the law and thirdly, as to whether the appellant was provided protection under section 8-A, I. R.
0., 1969, and the order of dismissal from service was illegal and mala fide on that account.
4. I have gone through the enquiry papers which have been brought in the evidence through Manager Administration Abdul Razzaq Awan and the Enquiry Officer Shaukat Ali, vide Exhs. 3-J to 3- J/9 and R. W. 1/2 to R. W. 1/7. They disclose that the enquiry was held on 12th November, 1980 when the incident out of which the misconduct alleged against the appellant resulted, took place on 12th October, 1980. The allegations against the appellant are that on 12th October, 1980 at about 1-30 p. m., he was on duty in Shift 'A' from 8.00 a. m. To 4-00 p. m. When Kala Khan Jobber of his section found heavy breakage of threads on his machine. He also found that Bobin of 65-T. R. Was cut by knife intentionally. On an enquiry from him by Kala Khan as to why there was a damage on his machine he used filthy language against him which would not be reproduced being beyond norms of decency. He also threatened him with dire consequences if he reported the matter on or took any action. In support of the allegations the Enquiry Officer on 12th November, 1980 recorded the statement of Ali Akbar Supervisor and Kala Khan Jobber in presence of the appellant and that the appellant also cross-examined them, whereafter the appellant walked-out of the enquiry proceedings. The Enquiry Officer had to suspend the proceedings to find him out but he could not be traced and, therefore, recorded the evidence of the remaining two witnesses Khalid Javed, Double Sider and Mir Afzal the Assistant Jobber in his absence and completed the enquiry and submitted his report on 14th November, 1980 vide Exh. 5-D. The evidence of Abdul Razzaq Awan and Shaukat Ali Enquiry Officer would disclose that the appellant walked-out of the enquiry for the reasons best known to him, whereas the appellant has contended that he requested for the postponement of the enquiry to contact his witnesses but it was refused in spite of his letter, dated 12th November, 1980. It is clear that the letter was sent by post as it is attached with the postal receipt, obviously after the appellant left the enquiry, as he himself has admitted in his evidence in Court that he was present in the enquiry proceedings on 12th November, 1980 and that the statements of Ali Akbar and Kala Khan were recorded in his presence. He has also admitted that he had cross-examined both the witnesses and that he had put his signatures on those statements and the attendance sheets. He has further stated that he requested for the postponement of the enquiry but it was refused and for that reason and because of the attitude of the Enquiry Officer he left the enquiry proceedings. In case he had participated in the enquiry and had cross-examined two witnesses he should have cross-examined the remaining two witnesses as well, and then would have requested the Enquiry Officer to postpone the enquiry for examination of his witnesses but he left the enquiry and went out and sent an application for postponement by post which was received sub- sequently after even the enquiry report was submitted. His conduct in that respect would not support his contention that no fair and impartial enquiry was held specially when the enquiry had taken place one month after the incident out of which the alleged misconduct arose.
The statements of the two witnesses Ali Akbar and Kala Khan in spite of the fact that they were cross-examined by the appellant coupled with those of Khalid Javed and Mr. Afzal examined in his absence would clearly disclose that they have fully supported the case of the respondents against him. Their evidence clearly shows that there was a heavy breakage of threads on his machine and that on questioning by Kala Khan, he misbehaved and used filthy language and also threatened him with dire consequences, and it is not possible to disbelieve their version, the manner in which they have supported the incident. Their evidence in the enquiry proceedings would clearly disclose that the charges against the appellant were fully established. The evidence in the enquiry proceedings coupled with that of Abdul Razzaq Awan and the Enquiry Officer Shaukat Ali in Court would also clearly disclose that the charges against the appellant were fully proved against him, Accordingly, I am satisfied that the fair and impartial enquiry was held and since the appellant after participating in the enquiry, deserted it without any. Sufficient cause he should not be allowed to take advantage of his own conduct. Accordingly, the order of his dismissal from service as a result of such an enquiry was quite just and proper. It has been contended that the order of dismissal was passed without a second show-cause notice to the appellant, but the evidence of of Muhammad Hussain Time-keeper examined on behalf of the appellant would clearly discloses that the appellant was served with second show-cause notice alongwith the copy of the enquiry report, as the office copy was signed by the appellant in token of the receipt of the second show- cause notice and the copy of the report attached to it and the signature has not been disputed. I am, therefore, satisfied that even the second show-cause notice alongwith copy of the enquiry report was served upon the appellant.
5. The contention that the order of dismissal from service was not passed by the competent Authority is also with no substance, as I find that Abdul Razzaq Awan, Manager Administration who signed the order of dismissal of the appellant from service was a notified manager of the factory of the respondents and thus an employer within the meaning of section 2(c)(1) of the West Pakistan Standing Orders Ordinance, 1968. The documents at Exhs. 5-A and 5-B produced by Abdul Razzaq Awan in that respect would clearly show that he was notified as Factory Manager under section 9(10) (e) of the Factories Act. The evidence of Mohib K. Habib, the Assistant Director Labour Welfare would support the version of the respondents in that respect. I would, therefore, find that Abdul Razzaq Awan who issued the dismissal order of the appellant from service was a notified Factory Manager of the respondents and, therefore, an `Employer' within the meaning of section 2(c) of the West Pakistan Standing Orders Ordinance, 1968, was legally competent to issue an order of dismissal from service of the appellant. Accordingly, 1 find that the appellant has failed to prove his case so far the first two issues are concerned.
6. I would now deal with the third issue with regard to the protection if at all, it is provided to the appellant under provisions of section 8-A, I. R.
0., 1969. I find ample evidence on the record that he was an active trade unionist and had contested elections of the union soon before the order of dismissal was passed and the application for registration before the Registrar, Trade Unions was pending on 22nd November, 1980 as deposed by Mr. Mir Muhammad Baloch the Assistant Director (Labour) (Trade Unions) East Division, Karachi, vide his deposition at Exh. Tr. 1 in the appeal file. Section 8-A, I. R.
0., 1969 prohibits, save with the permission of the Registrar, the transfer, discharge, dismissal or award of other punishments to an officer of a trade union or workman during the pendency of an application for registration of the trade union with the Registrar provided that the union had notified the names of the officers of the trade union to the employer in writing. Apart from the evidence of Mr. Mir Muhammad Baloch, it is more or less an admitted position as well that the application for the registration of the trade union was pending with the Registrar of Trade Unions with effect from 22nd November, 1980. It is consistently the case of the appellant that the union had notified the names of the officers to the Employer in writing on the morning of 22nd November, 1980 by urgent telegram and that it was received by them on the same date. Certified copy of the Union's telegram Exh. 3-H has been produced in support of the appellant's version in that respect.
The appellant has deposed that it should have reached the respondents on the same day obviously for the reason that it was urgent telegram from Karachi to Karachi, though the same has been denied by the respondents with the contention that it was received by them on 23rd November, 1980 after the dismissal order of the appellant Misri Khan had been issued. It is, however, admitted position that the order of dismissal was to take effect from 23rd November, 1980 as disclosed by the order itself. It is also admitted that the application for the registration of the trade union was pending on 23rd November, 1980 and that the telegram notifying the names of the office-bearers including that of appellant Misri Khan was also received on 23rd November, 1980 as admitted by the respondents. The telegram Exh. 3-H has been produced and bears the date of its despatch as 22nd November, 1980. Being an urgent telegram addressed from Karachi to Karachi, obviously there is no reason as to why it shall not reach to it's destination on 22nd November, 1980.
The presumption under section 114(f) of the Evidence Act in the circumstances would arise that it was received on 22nd November, 1980 before the order of dismissal of the appellant come into effect on 23rd November, 1980. This presumption is rebuttable c but no attempt has been made on behalf of the respondents to show that the telegram notifying the names of the office-bearers was received after the dismissal of the appellant came into effect, moreso when the entir record and the evidence in that respect was with the respondents. Accordingly, in my view, it has been established by sufficient and satisfactory evidence that the appellant had a protection under section 8-A, I. R. O., 1969, and he could not be dismissed from service in the circumstances stated above without permission of the Registrar of Trade Unions.
7. The result is that the impugned order passed by the learned Labour Court is set aside and the appeal is allowed. The appellant is directed to be reinstated. However, since he succeeds only on the legal grounds as stated above, I would award him back benefits only to the extent of 50% and the order passed, I believe would meet the ends of justice.